The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-02-24


Niblack that the courts have no jurisdiction of
the subject matter of this action, and as the
subject has been by him fully and SO ably dis
cussed, little can ha added.
/ began to investigate the question with the
impression that the courts had Jurisdiction of the
subject matter, but leave it with the firm con-
viction that thay have not. This impression
arose from belief that it is better ana safer
that such controversies this should be settled
by other tribunal that the Legislature but,
while still impressed with that belief am COM
PEELED to yield to the settled rules of the law and
the clear words of the Constitution. Whatever may
be the views of the courtor judge upon question
OF constitutional policy, the expressed will of the
people, as written in their Constitution must be
obeyed and enforced. / am convinced that the
trainers of the Constitution have conferred upon
| the General Assembly exclusive authority over
such controversies as this, although regarded rs
o question of policy, l arm persuaded that it
would have been wiser to have intrusted the au-
| thcrity to some other tribunal TIE makers Of
| the Constitution had power to vest the authority
| in the Legislature, and they have done so. To
| their Judgment all must yield.
The grant of power to the Legislature cannot
| be defeated upon the presumption that il will
| not be justly exercised. On the contrary it is
/ the duty of the judiciary to assume that the leg
| islators will faithfully and mpartially perform
| the duty imposed upon them by the Constitu-
| ton they have solemnly sworn to support
| Courts must accord to the Legislature the same
| solemn sense of duty, and the same conscien-
tious resolution to perform it. unmoved by i'm
proper motives, that they claim for them
/ selves. In Brown VS.. Buzan, "a Ind. 1914, it
| was said 1.-THE judiciary ought to accord to the
| Legislature as much purity of purpose as it
| would claim for itself; as honest a desire to obey
| the Constitution; and also high capacity to
| judge of its meaning" It is therefore natural
| and reasonable to conclude that the trainers of
| the Constitution, influenced by this principle,
| believed that the Legislature would impartially
| hear and determine all controversies and acting
| upon that belief inserted in that instrument the
osa sx,xya %hoE o~ -:kk
power TO determine all contests for the offices of
the Governor and ACKNOWLEDGEMENTS
| There was time in our history when eminent
men. statesmen and iurists believed that the
| courts had arrogated to themselves power
| which did not belong to them. and that its as
sumption was hostile to the spirit of our institu-
| tions. So thought Jefferson, Madison Jackson,
| Randolph. Van Buren, and Bancroft in the
| earlier years of the Republic, and so thought
Abraham Lincoln in more recent years. Ban
| crofts History Of Constitution II, 1913, 202 Gar
| lands Life of Randolph, 1921; Van Burens Polit-
| ical History. chapter 8; Lncoln's first inaugural
| address, The illustrious lawyers and states
men of the earlier years were leaders of men,
| and their utterances did much to mold and give
| tone to public opinion. Their most radical
views prevailed with many in their times,
and are advocated by lawyers in our own day.
(Mr. Sheetss address before American Bar AS
| ISOLATION, 1888 The influence of those great
| men was widespread and there is no doubt that
their views controlled in great measure
the older States and inspired then with the be-
lief that the public good demanded that
bounds be set to the power of the judiciary.
Our own conventions, that of 1916. and that of
1851, borrowed from the older States. and, infu-
| enced by the same reasons which had moved the
conventions of those States to limit the power of
| the judiciary on matters of a political nature,
distributed the power by investing authority
| over controversies respecting the title to the
executive Offices in the General Assembly
The members of the convention which framed
the federal Constitution believed that the courts
should only decide purely judicial questions
One of the historians of the debates of that
body gives substantially this account of the
action of its members. DR.. johnson, that his-
torian says, moved an amendment to the pro-
vision relating to the Jurisdiction of the courts,
whereupon Mr.. Madison said, ''He doubted
whether it was going too far to exteuG the jurs-
diction of the court generally to cases arising
under the Constitution, and whether it ought
not to be limited to cases Of a judiciary nature;
the right of expounding the Constitution in
cases of this nature ought not to be given to
that department. The motion of DR.. johnson
was agreed to mem. con-. it being generally sup
posed that the jurisdiction given was construct
lively limited to cases of judiciary nature. -
tElliotts Debates, vol 5, D. 483
It is now firmly settled, and, as / believe
wisely settled, in accordance with sound govern
mental policy and true principles of jurispru
dence, that the judiciary has power to decide il
all cases over which it has jurisdiction upon the
constitusonality of all legislative and executive
acts but this just result was only reached after
a fierce and stubborn conflict Judges whs
asserted this principle were denounced in bitter
est terms in high places and in the public prints
Nor did the attack made upon them end IL
words. In 1876, during the troublous times II
Rhode Island, so well described by McMaster
! in his History of the American People, the judges
of the Superior Court were impeached for de
Gliding an act of the Legislature to be unconsti
tu.onal. and although they were acquitted, the.
lost their offices. To 1906 two of the judges of th
I re- YrHn ~ and pano
: were i'm peached for making similar decision
: but, after a bitter contest they we're acquitted
: These contests were the subject of much discus
! sion, and the conduct OF the judges was in man.
2 quarters wrathfully assailed, and in others de
!, | Tended Denunciatiops of what was asserted :
Q be the tyrannical usurpation of authority ran
throughout the land, and many men, @
them great leaders, declared that the power c
the judiciary must be confined within narrowe
2 limits. The strife profoundly agitated the put
: lie mind, and its influence was felt in the hail
d of the conventions. and it led to limitation G
. | the power of the courts
II It is always proper to examine the history o
u the country and to study the discussions of til
u times in order to ascertain the meaning Of cor
Q stitutional provisions. It is indeed, often net
( essary to do so. and from these sources light
oftentimes obtained that clears away obscurit
: and difficulty. Cooley Const. Law, SLl l
this instance history supplies material aid, for
: informs us that there was reason for limitin
= the power of the judiciary and a purpose to
. accomplished in doing it.
}, A reason urged by some who desired the pov
70 or asserted by the courts was: That power
% great should not be intrusted to men who's
o terms o. Office were for life, as. in the earle
O. years of the Republic, were the terms of IL
Judges of the State and federal courts II W;
~ thought by many whether Justly or not it is q,
ot for the judiciary to decide. that it wiser ar
- better to place the authority of determining
s sss contests respecting the right to Office in II
d hands of those officers whose terms of off
ie were not of great duration. Ohio Kentucky ar
- other States have taken the entire power fro
e. the courts and placed it special tribunal
r. o.. oorr& hos raooor;1ad Tho $500.
. ciple that it is often best to intrust high now
JIG 70 officers terms short In Rrosrn